Allreef Corporation Pty Ltd v Camballin Developments (WA) Pty Ltd - [2008] WADC 103

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: ALLREEF CORPORATION PTY LTD -v- CAMBALLIN DEVELOPMENTS (WA) PTY LTD [2008] WADC 103

CORAM: COMMISSIONER HERRON

HEARD: 19 MAY 2008

DELIVERED : 24 JULY 2008

FILE NO/S: CIV 2281 of 2005

BETWEEN: ALLREEF CORPORATION PTY LTD
Plaintiff
AND
CAMBALLIN DEVELOPMENTS (WA) PTY LTD
Defendant

Catchwords:

Contract - Claim in debt for monies owing - Counterclaim for damages for breach of contract - Partly written and partly oral contract - Determination of express and implied terms - Abandonment of contract - Turns on own facts

Legislation:

Nil

Result:

Plaintiff's claim upheld in part
Defendant's counterclaim upheld in part

Representation:

Counsel:

Plaintiff: Mr J C Curthoys
Defendant: Mr S M Davies

Solicitors:

Plaintiff: Stables Scott
Defendant: Jonathan Eastoe

Case(s) referred to in judgment(s):

BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1976-1977) 138 CLR 423
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Hawkins v Clayton (1988) 164 CLR 539
Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41
Summers v The Commonwealth (1918) 25 CLR 144
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165

COMMISSIONER HERRON:

Introduction

Allreef Corporation Pty Ltd, the plaintiff, carries on the business of providing mustering services trading as Brennan Pastoral Company and which in the course of dealings and documentation exchanged between the parties was commonly referred to as Brennan's Contract Mustering ("BCM").
It is common ground between the parties that by a written quotation dated 28 January 2005 the plaintiff offered to provide mustering services to the defendant for the 2005 mustering season at Moola Bulla Station. By facsimile dated 14 February 2005 sent by the defendant to the plaintiff, the defendant accepted the quotation and the parties entered into a contract by which the plaintiff was to provide mustering services for the defendant on Moola Bulla Station for the 2005 mustering season.
At all material times Darren Brennan was a director of the plaintiff.
At the material time during 2005 Camballin Developments (WA) Pty Ltd, the defendant, owned and operated the Moola Bulla Station near Halls Creek in northern Western Australia and carried on business trading as Moola Bulla Pastoral Company. Moola Bulla Station is a cattle station.
Mr Brennan, together with some of his stockhand employees arrived at Moola Bulla on 22 February 2005 for the purpose of providing the mustering services. Between 22 February 2005 and approximately 8 May 2005 when Mr Brennan departed from the station, the plaintiff through Mr Brennan and his team performed mustering services for the defendant.
The plaintiff rendered invoices to the defendant in respect of the mustering services it claims were performed by it, but a dispute arose between the parties regarding the services performed by the plaintiff and the extent of the defendant's liability to the plaintiff for payment of its invoices. The plaintiff claims moneys due and owing to it by the defendant for the mustering services. The defendant admits certain moneys are due and owing to the plaintiff but counterclaims against the plaintiff for damages for breach of contract and seeks to set off the amount it says is owing to the plaintiff against the amount of damages it says it is entitled to from the plaintiff.
The plaintiff says the sum of $75,647.44 is due and owing, alternatively the sum of $65,727.64. The defendant admits it owes the plaintiff the sum of $27,580.85, but counterclaims in the sum of $186,492.77, (alternatively $183,045.70), as set out in its schedule of calculations of amounts due.

Pleadings and the issues

In its statement of claim the plaintiff pleads the contract between the parties for the provision of mustering services was a written contract comprising the written quotation submitted by the plaintiff to the defendant on or about 28 January 2005, the terms of which were accepted by the defendant by facsimile sent to the plaintiff dated 14 February 2005.
Paragraph 4 pleads the terms of the contract as follows:
"4.The Contract provided (inter alia) that:
4.1the Defendant would pay the Plaintiff $9.50 per head of cattle mustered plus GST for the first twenty‑five thousand (25,000) head of cattle and $8.00 per head of cattle plus GST in excess of twenty‑five thousand (25,000) head of cattle.
4.2the Defendant would pay the Plaintiff:-
(i)a day rate of $2,000.00 plus GST for catching and clean‑up work.
(ii)$120 per head plus GST for catching bulls or bullocks.
(iii)$75 per head plus GST for catching cows.
(iv)$50 per head plus GST for catching weaners.
4.3the Defendant would pay the Plaintiff an amount to be agreed for mobilisation."
The defendant denies the contract was wholly in writing and in par 3 of its defence pleads the contract was made partly in writing, was partly oral and partly implied. Insofar as the contract was in writing it is comprised of the written quotation of 28 January 2005 and the facsimile from the defendant to the plaintiff dated 14 February 2005.
Insofar as the contract was oral the defendant pleads it arose from discussions between Mr Nicolass ("Nico") Botha on behalf of the defendant and Mr Brennan on behalf of the plaintiff on 28 January 2005 at Mr Botha's house in Hovea.
Although it is also pleaded the contract was in part implied I understand the plea to be rather there was an implied term, as pleaded in par 4A(g), that the plaintiff would proceed with the muster with diligence and complete the muster within a reasonable time of early March 2005.
The defendant admits par 4 of the statement of claim but at par 4(d) of its defence says further, that at the meeting on 28 January 2005, which was also attended by the defendant's station manager Ben Hoar, that:
"4(d)at the Meeting:
(i)Botha and Hoar emphatically advised Brennan that the Plaintiff must be totally self-sufficient and must be located in a camp separate from the Defendant's mustering staff if the Defendant were to enter into the Contract;
(ii)Brennan agreed to that term;
(iii)Botha and Hoar advised Brennan that the estimated head of stock required to be mustered was 50,000 and the Plaintiff would muster a minimum of 20,000 head of stock;
(iv)Brennan agreed to that term;
(v)Brennan represented to Botha and Hoar that the Plaintiff had a road train vehicle (described in the Contract as '4 deck unit') which the Plaintiff could supply in connection with the Contract if the Defendant needed it and Botha replied 'We will need it' and that representation formed part of the Representation (as pleaded in paragraph 4(a));
(va)Brennan agreed that the road train would be provided;
(vi)Brennan informed Botha and Hoar that the Plaintiff would supply a camp staff of 8 persons (one of whom was to be an experienced Head Stockman) and a cook and that Brennan would be available during the period of the mustering to assist at all times and Botha informed Brennan that the term would be a term of the Contract;
(via)Brennan agreed to that term;
(vii)Botha informed Brennan that the Defendant would conduct part of the mustering and that the number of cattle to be mustered by the Plaintiff (over and above those the subject of the term pleaded in sub‑paragraph (iii) hereof) was dependent upon the efficiency with which the Plaintiff carried out its obligations under the Contract;
(viia)Brennan agreed to that term;
(viii)Botha informed Brennan that the Defendant would not agree to pay a day rate because the Plaintiff was required to be an independent contractor capable of operating without supervision and that the Defendant's remuneration was to be calculated on a head rate basis as an incentive to the Plaintiff;
(ix)Brennan informed Botha that he, Brennan would insert in the Quotation a clause concerning a day rate and that that term would only apply, on an ad hoc basis, if the Plaintiff requested it to apply and the Defendant agreed that it would apply;
(x)Brennan and Botha agreed that the day rate could in any event only apply to work undertaken in paddocks not mustered by the Plaintiff."
Further, the defendant pleads in par 4A of its re‑amended defence that on a proper construction of the contract the material terms were as follows:
"4AOn a proper construction of the Contract the material terms were as follows:
(a)The Plaintiff would provide to the Defendant contract mustering services for the 2005 muster on Moola Bulla Station.
Particulars
The term is in writing and is recorded in the Plaintiff's quote and the Defendant's facsimile dated 14 February 2005.
(b)The Plaintiff would supply stock camp staff, cook, food, fuel and plant including portable yards and race, 6 x 6 wheel truck and trailer, motorbikes, catcher, fridges and freezers and fuel tanker.
Particulars
The term is in writing in the Plaintiff's quote.
(c)The Plaintiff would supply camp staff of eight persons (one of whom was to be an experienced head stockman) and that Brennan would be personally available during the period of the mustering to assist at all times.
Particulars
The term was partly written in the Plaintiff's quote and partly oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(d)The Defendant would be operating its own mustering team on the Station and the Plaintiff would be totally self-sufficient and must be located in a camp separate from the Defendant's own mustering staff.
Particulars
The term was oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(e)The Plaintiff would be required to muster a minimum of 20,000 head of stock.
Particulars
The term was oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(f)The Plaintiff would commence providing the Contract mustering services in early March 2005.
Particulars
The term is in writing and is recorded in the Defendant's facsimile dated 14 February 2005.
(g)The Plaintiff would proceed with the muster with diligence and complete the muster within a reasonable time of early March 2005.
Particulars
The term is implied because it is necessary for the reasonable or effective operation of the Contract in the circumstances of the case, alternatively because it is reasonable and equitable, necessary to give business efficacy, is obvious, is capable of clear expression and does not contradict any express term of contract.
(h)The Defendant would pay the Plaintiff a price on paddocks mustered by the Plaintiff of $9.50 per head for the first 25,000 head of cattle mustered by the Plaintiff plus GST and $8 per head plus GST after the first 25,000 head, save that there would be no head rate charged on new born calves.
Particulars
The term is in writing in the Plaintiff's quotation.
(i)In the event that during the course of the mustering the plaintiff requested to be paid a day rate for catching and clean up work and in the event that the Defendant in advance agreed that a day rate would apply, the day rate for catching and clean up work would be $2,000 per day plus GST or $120 plus GST per head of bulls and bullocks, $75 plus GST per head of cows, $50 plus GST per head for weaners.
Particulars
The term was partly written in the Plaintiff's quote and partly oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(j)The day rate could in any event only apply to work undertaken in paddocks not mustered by the Plaintiff.
Particulars
The term was partly written in the Plaintiff's quote and partly oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(k)The Plaintiff would supply a 4 deck road train vehicle including fuel for use in connection with the mustering and the Defendant would pay to the Plaintiff $1,500 plus GST per day when the vehicle was in use.
Particulars
The term was partly written in the Plaintiff's quotation and partly oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005.
(l)In the event that the Plaintiff brought in any plant other than the plant referred to in the terms set out above then the Plaintiff and the Defendant would negotiate a mobilisation charge in respect of that other plant.
Particulars
The term was partly written in the Plaintiff's quotation and partly oral and was agreed (subject to entry into a contract) in discussions between Botha and Brennan on 28 January 2005."
At par 5 of its re‑amended statement of claim the plaintiff pleads the work it says it performed pursuant to the contract as:
1.Mustered 7,000 head of sale cattle in Sisters/Gnewings paddock;
2.Mustered 1,574 head of cattle out of Top Sisters paddock;
3.Performed catching and clean-up work for three separate periods being:
(a)10 days between 15 April and 29 April 2005;
(b)10 days between 4 April and 14 April 2005; and
(c)three days between 30 April and 3 May 2005.
4.Also caught 14 bulls, two cows and six weaners as a part of the catching and the clean-up work;
5.Alternatively to the claim on the basis of catching and clean-up work it mustered:
(a)1,156 cattle from Camel/Nymagee Cameron's portable;
(b)936 cattle from Cameron's portable;
(c)312 cattle from Cameron's portable;
Making a total of 2,404 at $10.45 per head.
It is also claimed the plaintiff undertook mobilisation from Katherine to Moola Bulla for an agreed price of $2,750 inclusive of GST.
Paragraph 6 pleads what amount the plaintiff alleges it was entitled to be paid in respect of the work it undertook. Paragraph 7 pleads on 30 March 2004 the defendant paid the sum of $33,071.41 to the plaintiff after a deduction of $6,305.84 for stores and supplies purchased by the plaintiff from the defendant.
Although the re‑amended statement of claim claims the sum of $105,914.05 the plaintiff in its closing submissions revised its claim in the amounts set out at par 7 above, that is, $75,647.44 or in the alternative $65,727.64.
By par 5(d) of its re‑amended defence the defendant pleads:
"pursuant to the Contract the Plaintiff:
(i)mustered 1,176 head of cattle (from the Top Sisters Paddock) at the rate of $9.50 per head
(ii)mustered 983 head of cattle from the Nymagee and Camel Paddocks at the rate of $9.50 per head."
In his closing submissions counsel for the defendant conceded the plaintiff had in fact mustered 1,037 head of cattle from the Nymagee and Camel Paddocks rather than 983.
The defendant also pleads the plaintiff did not request, nor did the defendant agree to, the application of a day rate. I will later explain the difference between a day rate and a head rate and the significance of it in relation to the terms of the contract and the dispute which arose between the parties.
The defendant also pleads that on 12 March 2005, after Mr Brennan arrived at Moola Bulla, the plaintiff and the defendant entered into an additional agreement, ("the Sisters/Gnewing agreement"), such agreement being oral and having been made between Mr Hoar on behalf of the defendant and Mr Brennan on 12 March 2005 and ratified by Mr Botha on 13 March 2005, by which the plaintiff and the defendant agreed to jointly muster the cattle in the Sisters and Gnewings paddocks for which the defendant would pay the plaintiff $9.50 per head of cattle for half of the total number of cattle jointly mustered. That work was to be done in addition to the work to be performed pursuant to the original contract. The defendant further pleads, pursuant to the Sisters/Gnewing agreement the plaintiff and the defendant jointly mustered 7,000 head of cattle, the plaintiff became entitled to $36,627.25, and that such payment was made to the plaintiff.
The re‑amended defence therefore draws a distinction between mustering and catching and clean-up work performed pursuant to the original contract, mustering work performed pursuant to the Sisters/Gnewing agreement, and the basis upon which payment for the work performed by the plaintiff was to be made. The re‑amended statement of claim pleads the plaintiff's claim on the basis that all work which was performed by the plaintiff was pursuant to the one agreement constituted by the quotation of 28 January 2005 and the facsimile of 14 February 2005 accepting the quote.
By its counterclaim the defendant pleads that in or about March 2005 the parties entered into:
1.An agreement for the plaintiff to purchase from the defendant a Toyota vehicle for the sum of $2,500 plus GST;
2.An agreement by which the plaintiff purchased from the defendant 19 horses at $1,500 per horse.
It is also pleaded that having purchased the Toyota and the horses the plaintiff used the Toyota and the horses but failed and refused to make payment.
It is further pleaded the parties agreed the defendant would provide a facility by which the plaintiff and its staff could purchase stores on credit on condition the plaintiff would pay to the defendant the costs of the stores charged. It is alleged the plaintiff purchased stores from the defendant for the sum of $6,861.50 which sum has not been paid by the plaintiff.
It is pleaded the plaintiff was in breach of the contract, being the original contract, in a number of respects, importantly, by:
(a)failing to commence provision of the mustering services in early March;
(b)failing to proceed with the muster with diligence;
(c)failing to complete the muster within a reasonable time of early March 2005 or at all; and
(d)failing to have the agreed amount of staff and the necessary equipment available to perform the plaintiff's obligations under the contract.
The defendant also pleads the plaintiff failed to provide a road train in breach of a term of the contract.
The defendant says the plaintiff abandoned further performance of its obligations under the contract on or about 29 April 2005.
The defendant pleads at par 12 of its re‑amended counterclaim that by reason of the plaintiff's breach of contract the defendant has not been paid:
(a)the purchase price of the Toyota in the sum of $2,750;
(b)the purchase price of the horses in the sum of $18,022 after the defendant resold the horses for an average price of $551.47;
(c)for the stores in the sum of $6,861.50.
It is also claimed the defendant was obliged to engage:
(a)an alternative road train contractor at a total cost of $32,450 over and above the agreed contract price with the plaintiff; and
(b)a replacement mustering contractor who charged an extra $8,290 over and above the agreed contract price with the plaintiff for mustering a further 5,527 head of cattle.
Further, the defendant pleads at par 12(6):
"If the Plaintiff had complied with the Contract the Plaintiff would have mustered at least 792 of the Defendant's steers and bullocks by 7 April 2005 and the Defendant says:
(i)792 steers and bullocks would have had a gross weight of at least, alternatively, approximately (218,592) kg and an average unit weight of 276 kg.
(ii)If 792 steers and bullocks had been mustered by 7 April 2005 the sale price for them as at that date was $1.88 per kilo.
(iii)The Plaintiff failed to muster those cattle by 7 April 2005 or at all and the Defendant was required to make alternative arrangements for the mustering of the cattle.
(iv)By the time 792 steers and bullocks were mustered it was 4 June 2005 and the price per kilo had fallen to $1.55 per kilo and the average unit weight of the steers and bullocks had fallen to 250.8 kg and the Defendant therefore suffered loss of $99,978 calculated as follows:-
(a)Sale on 7 April 2005
792 x 276 kg (average unit weight)
x $1.88 per kg  $410,953
Less sales commission @ 3% $12,329
Net Sale Price  $398,624
(b)Sale on 4 June 2005
792 x 250.8 (average unit weight)
x $1.55 per kg  $307,882
Less sales commission @ 3%    $9,236
New Sales Price  $298,646
(c)Difference
7 April 2005                  $398,624
4 June 2005$298,646
$99,978."

Finally, the defendant pleads that at the end of the 2004 mustering season on Moola Bulla the plaintiff represented to the defendant that the plaintiff had the capacity to carry out large scale mustering as an independent contractor and that in reliance upon that representation the defendant entered into the contract by reason of which it suffered the loss and damage earlier particularised. Although s 52 of the Trade Practices Act1974 (Cth) is not specifically pleaded, the plea that the representation was conduct which was misleading or deceptive or likely to mislead or deceive is clearly based upon s 52.
The defendant counterclaims against the plaintiff for:
(a)damages for breach of contract;
(b)damages pursuant to s 82 of the Trade Practices Act and pursuant to s 79 Fair Trading Act1987.
By its amended reply and defence to counterclaim the plaintiff denies the contract was partly in writing, partly oral and partly implied and says the contract was wholly in writing constituted by the written quotation and the facsimile accepting the terms of the quotation. The plaintiff also denies par 4A of the defence, which I have set out above at par 14, which pleads the terms of the contract the defendant says was entered into between the parties.
The plaintiff admits it agreed to purchase the Toyota vehicle and the horses from the defendant and that it has not paid the defendant but, says it agreed to purchase them on the condition the purchase price would be payable out of the moneys payable by the defendant to the plaintiff for performing the mustering contract and, because the defendant has refused to make payment, it has abandoned the contract and the plaintiff is not obliged to make payment or complete the purchase.
The plaintiff also denies it delayed in performing the mustering services and says it was unable to muster between 4 April 2005 and 18 April 2005 because the defendant refused to permit the plaintiff to muster and Mr Botha refused to let the plaintiff use Aboriginal stockmen.
The plaintiff also says it was only required to provide a four deck truck for paddock carting if so required, but that the road train was not required nor was the plaintiff instructed by the defendant to provide it.
Although the reply does not specifically refer to par 4 of the defence, which pleads what occurred at the meeting on 28 January 2005, as the evidence emerged at trial Mr Brennan either denied those matters were discussed or could not recollect them being discussed. A related issue, which is perhaps more relevant to credibility than to the terms of the contract, is whether the written quotation which was signed by Mr Brennan and accepted by the defendant on 14 February 2005 was signed by Mr Brennan and provided to Mr Botha at the meeting.
In my view I am required to consider and determine the following issues:
1.What happened and what was discussed at the meeting on 28 January 2005;
2.Specifically, did Mr Brennan bring with him to the meeting a written quotation (Exhibit 1) which was discussed with Mr Botha and Mr Hoar and did Mr Brennan telephone his wife requesting her to amend the quotation as a result of which she sent an amended quotation by email which was printed by Mr Botha at his home and which was signed by Mr Brennan (Exhibit 10);
3.Were the matters set out at par 4(d) of the re‑amended defence discussed at the meeting and if so, did they become terms of the contract entered into between the parties upon receipt of the facsimile from the defendant to the plaintiff dated 14 February 2005 (Exhibit 4);
4.Whether the contract was wholly in writing as constituted by the written quotation and the facsimile or whether it was partly in writing and partly oral;
5.What were the terms of the contract;
6.Whether the contract was wholly in writing or partly written and partly oral, were the terms of the contract as is pleaded at par 4A of the defence;
7.Was it an implied term of the contract that the plaintiff proceed with the muster with diligence and complete the muster within a reasonable time of early March 2005 and if so, what is "within a reasonable time";
8.Did the plaintiff proceed with the muster with diligence;
9.Did the parties enter into a further agreement, the Sisters/Gnewing agreement, on or about 12 March 2005 and if so, what were the terms of that agreement;
10.Were the 7000 head of cattle which were mustered from the Sisters and the Gnewings paddocks mustered pursuant to the Sisters/Gnewing agreement or were they mustered pursuant to the original contract;
11.Related to that issue were the cattle jointly mustered by the plaintiff and the defendant or were they only mustered by the plaintiff;
12.Did the plaintiff have sufficient staff and equipment and have the capacity to properly undertake the mustering at Moola Bulla;
13.What is catching and clean-up work;
14.Did the plaintiff perform any catching and clean-up work and if so:
(a)was it a term of the contract in relation to performing catching and clean-up work that before such work was performed it had to be first authorised by Mr Botha or Mr Hoar on behalf of the defendant when the rate at which such work would be paid would be negotiated and agreed;
(b)was it a term of the contract that if catching and clean-up work was to be performed such work would only be performed on extra paddocks not mustered by the plaintiff;
(c)did the plaintiff perform catching and clean-up work in accordance with the terms of the contract;
(d)was it authorised in accordance with a term of the contract;
(e)was there an entitlement to payment for such work;
(f)if there was an entitlement, was it on the basis of a day rate or a higher per head rate.
15.What work undertaken by the plaintiff was general mustering work in respect of which payment would be made by the defendant at a rate of $9.50 per head of cattle mustered plus GST and what work was catching and clean-up work in respect of which there was an entitlement to payment at a higher rate than general mustering work;
16.How many cattle were mustered or caught by the plaintiff;
17.What equipment was the plaintiff required to have at Moola Bulla Station for the purpose of undertaking the mustering pursuant to the contract;
18.At any time while Mr Brennan was present at Moola Bulla did the plaintiff have sufficient equipment in accordance with the contract to be able to properly undertake the mustering;
19.What was the number of stock camp staff the plaintiff was required to supply pursuant to the contract, specifically whether the plaintiff was required to provide eight or ten persons one of whom was to be an experienced head stockman;
20.Did the plaintiff supply the required number, or a sufficient number, of stock camp staff to undertake the mustering prior to the arrival of Mark Gordon and his crew on or about 24 April 2005;
21.Was there a term of the contract that the plaintiff would supply a four deck road train, including fuel for use in connection with the mustering at a rate of $1,500 plus GST per day when the road train was in use;
22.Was there a term of the contract that the plaintiff was entitled to be paid a mobilisation charge in respect of plant and equipment brought on to Moola Bulla and if so, did the plaintiff bring such plant and equipment on to Moola Bulla which gave rise to the entitlement to a mobilisation charge;
23.What were the circumstances in which Mr Brennan left Moola Bulla Station;
24.Did the plaintiff abandon the contract and refuse to perform its obligations under the contract on or about 29 April or 3 May 2005;
25.What sum is the plaintiff entitled to for the mustering services performed by it;
26.Is the defendant entitled to payment, and if so in what amounts:
(a)for purchase of the Toyota;
(b)for purchase of the horses;
(c)for purchase of stores;
(d)for engaging a road train;
(e)for engaging a contractor to complete the muster.
27.Did the defendant abandon the contracts for purchase of the Toyota and the horses;
28.Finally, is the defendant entitled to damages on the basis that 792 of its steers and bullocks were only mustered and sold on 4 June 2005 rather than 7 April 2005.

Moola Bulla Station

Moola Bulla Station is in fact two stations, Moola Bulla and Mount Amhurst Stations combined as one. It is located in the Kimberley in the Shire of Halls Creek. It covers an area of approximately 665,000 hectares. It is hilly country. The station is divided into a number of paddocks which have been given names.
Moola Bulla is a cattle station. Both Mr Botha and Mr Ben Hoar conservatively estimated that during the 2004 and 2005 mustering seasons there was 50,000 head of cattle of various types and categories, excluding newborn calves who had been born for less than one month. Although disputed by the plaintiff, in my view their evidence as to the number of cattle is confirmed by the annual return of livestock for the year ending 30 June 2004 for Moola Bulla and Mount Amhurst Stations completed by Mr Hoar (Exhibits 56A and B) which recorded approximately 28,004 head of cattle. Both Mr Hoar and Mr Botha explained, which explanations I accept, the returns did not include the sold cattle or the newborn calves. Mr Hoar said the returns only included the branded processed cattle. The returns did not include approximately 15,000 sale cattle which had been removed from the property or the newborn calves. He thought the returns were consistent with the estimation of 50,000 head of cattle on Moola Bulla. Newborn calves are calves which are about a week old. Mr Botha thought there were more than the 50,000 head of cattle which were estimated.
Mr Hammar, a mustering contractor who was employed by the defendant, after Mr Brennan and his crew departed Moola Bulla, to provide a road train to undertake the paddock carting, was also contracted by the defendant to undertake the 2006 muster. He said he and his crew mustered 42,000 head of cattle in 86 days. Although it was not made clear whether that included new born calves, I understood him to be referring to cattle he mustered for which he charged the defendant, which excluded new born calves. Mr Hammar also said he expected to muster 95 per cent of cattle from a paddock depending upon the type of country. Therefore, taking into account new born calves and cattle which may not have been mustered and which were left in the paddocks, the number of cattle mustered in 2006 by Mr Hammar is consistent with Mr Botha's and Mr Hoar's estimation as to the number of cattle at Moola Bulla in 2005.
The homestead is to the south of the station next to a paddock named "Old Station". There is a paddock which features in the evidence named "Dougals" which is to the northeast of the homestead. To the north of Dougals is Carringtons. Between Dougals and Carringtons is a paddock marked "HP" on the map of Moola Bulla in (Exhibit 5) which means holding paddock. There is also a camp on Dougals where Mr Brennan and his crew stayed. That camp is approximately 20 or 30 kilometres from the homestead.
The defendant company purchased Moola Bulla in late 2001, early 2002. Mr Botha is a director of the defendant. Until mid‑2004 although Mr Botha was always responsible for overall management, the defendant employed management teams to manage Moola Bulla. In mid‑2004 following his appointment by the defendant Mr Hoar, under the direction of Mr Botha, assumed management of Moola Bulla from the previous management team. At that time besides Mr Hoar the permanent staff comprised Jeanie Waddell who is also Mr Hoar's partner. In addition there were a number of casual and seasonal staff who were employed for the mustering season.
The mustering season normally runs when the wet season ends, which is generally in February, until November when the wet seasons starts again. At any one time during the mustering season there might be in the region of 20 staff, many of whom would come and go, only staying for short periods.
For the 2005 season Simon Hoar, Mr Hoar's brother, was employed by the defendant as the head stockman.

Cattle mustered

In each mustering season the cattle which are mustered are divided and separated into two groups, those being sale cattle which are immediately sent off for sale and other cattle which are kept for the following sales season and breeder cattle. Sale cattle are processed in the previous season which involves bringing all of the cattle into the yards, categorising or classifying them into various classes, branding them, spaying certain classes, bang tailing them (which involves cutting off half of the brush at the bottom of the tail for identification purposes), undertaking botulism injections, castrating weaners and injecting them with a growth hormone and a five in one injection which is mainly for tetanus. Sale cattle are normally put into home yards and held in a holding paddock until enough are mustered to be transported for sale.
In respect of each paddock which is mustered a written muster summary form is completed. The written muster summary form is normally completed by the head stockman or the owner of the station. A typical muster summary form is that for the Top Sisters paddock (Exhibit 28). That form was completed by Mr Wright who was the plaintiff's head foreman. There are various categories or classes of both sale cattle and breeder cattle which are caught in the overall general muster. Sale cattle include steers, bullocks, bulls, heifers and cows including spayed heifers and cows. A spayed heifer or cow has had its ovaries removed and is therefore unable to give birth again, which enables it to be fattened. A steer is a male who has been castrated. A weaner is a calf older than one month. A heifer is a young cow. A mickie is a young bull.
Of the cattle mustered there are four classes of weaners, being branded weaner steers and branded weaner heifers and cleanskin weaner mickies and cleanskin weaner heifers. Weaners are mostly sale cattle which are set aside for the following year and moved to a paddock, called the weaner paddock, where they stay for the wet season before being sold the following year. Before the weaners are moved into the weaner paddock, the previous year's weaners which become the current year's sale cattle are taken from the weaner paddock and mustered into yards, then drafted into classes for sale.
There is less work involved in mustering sale cattle as those cattle have already been processed by being branded, injected, castrated, spayed, etc.
Typically, mustering involves using a combination of permanent and portable yards. On a large station such as Moola Bulla which contains a lot of hilly country it is necessary to erect portable yards around areas of water where the cattle gather.
Cattle are mustered by a combination of stockmen on horses and using motorbikes and bull buggies. A helicopter was also normally used on Moola Bulla to assist in the mustering.

Catching and clean-up work

Catching and clean-up work occurs after a general muster where some cattle are left behind in the paddocks. Usually not all the cattle will be caught in a general muster. Mr Botha's explanation, which I accept, is that it means catching the cattle who have been missed in the general muster and cleaning the paddock by catching those missed cattle. Normally the owner or manager of the station after the general muster has been completed and while the cattle are in the yards being processed will inspect the paddocks which have been mustered by driving around the paddocks or using a helicopter to determine how many cattle have been missed. If a substantial number of cattle have been missed, the owner or manager will decide whether someone should go back into the paddocks to catch the missed or remaining cattle. The determinative factors are the number of cattle which have been missed and the cost involved in catching those cattle. Missed cattle will often be wild or educated cattle who are normally more difficult to muster than cattle who have been previously caught. The terrain of the area where the cattle are will also determine whether catching and clean‑up can be justified.
Because catching and clean‑up work is more difficult and time consuming work than a general muster which often involves, particularly with the catching of steers, or bulls having to catch them one at a time using a bull buggy and then loading the captured steer or bull onto the back of a buggy, the charge or cost of performing such work is higher than the rate charged for a general muster. A general muster is charged at a per head of cattle mustered whereas catching and clean‑up work is charged at a daily rate or a higher head rate reflecting the fact that more work is involved in capturing fewer cattle.
The evidence of both Mr Botha and Mr Hoar is that a mustering contractor is never authorised to undertake catching and clean-up work at the beginning of general muster. A decision will only be made after the general muster has been undertaken as to whether there will be catching and clean-up work for those paddocks which have been mustered. That decision will always be made by the owner or manager. If a decision is made to undertake catching and clean‑up, the basis upon which it is to be undertaken will be negotiated between the owner/manager and the mustering contractor at that time. Because the decision basically comes down to a financial consideration, whether or not the work is to be performed depends upon the number of cattle which have been missed and the cost involved in catching them.
That evidence was corroborated by Mr Mark Gordon. He gave evidence on behalf of the plaintiff. Mr Gordon was the manager of a neighbouring station Koongie Park Station. He is also an experienced mustering contractor who has worked on a number of stations in the Kimberley. Mr Brennan arranged for him to bring his mustering team to Moola Bulla in April 2005 to assist the plaintiff with the mustering. Mr Gordon and his team helped muster the Camel and Nymagee paddocks. Initially in his evidence Mr Gordon said that he thought the station had already been mustered and they were doing clean-up type work. He expanded upon that evidence in cross‑examination when he explained that he understood the Moola Bulla staff had already performed the muster of the paddocks that his team was working in. Mr Gordon later explained that the catching and clean‑up is done after the general muster is performed and some cattle have been left behind in the paddocks. He confirmed that it was the station owner or manager who determined whether catching and clean‑up work would be performed after the general muster. If it was determined that catching and clean‑up work would be undertaken there would be discussion between the station owner or manager and the mustering contractor about the rate at which the contractor was prepared to undertake the catching and clean‑up and a further contract would then be entered into. The rate negotiated for catching and clean‑up is a higher rate than the general mustering rate being either a higher head rate or a day rate.
Mr Hammar, who is an experienced mustering contractor, gave similar evidence explaining such work involved going back into the paddocks and cleaning up what was left. He explained that if he was mustering 20,000 to 30,000 head of cattle it was not worth going back into the paddocks looking for 10 or 20 head of cattle particularly as he wanted to process as quickly as possible the 20,000 to 30,000 head of cattle. He also explained that the station owner did not generally want to negotiate another price for catching and clean up work involving 20 to 30 head of cattle when there were 20,000 to 30,000 head of cattle to be processed.

There is an issue between the parties as to whether, in determining if the work being undertaken is a part of the general mustering contract or is catching and clean‑up work, the use of portable panels is relevant. Mr Brennan said that because the permanent yards at Dougal's were in a state of disrepair they had to use portable yards and because they also had to use portable yards at Camel and Nymagee which involved extra work in having to set up the portable yards such work was, in his view, catching and clean‑up work.
Some support for that view was provided by the plaintiff's head stockman, Mr Wright. He said they ran three portable yards and "just cleaned up a heap of feral cattle that were out the back". He explained they set up a portable yard using Hessian wings coming out from either side of the yard. It was necessary to set up the portable yards in the scrub or in an area where the cattle can't sense they are being herded into the yard. He regarded that as harder work because of the need to use portable yards and because the cattle were harder to muster and handle because he thought they hadn't been previously mustered and become used to being handled.
Mr Hammar gave evidence there was no distinction between using permanent or portable yards in a general muster. He was of the view it was often quicker to use portable yards because a lot of cattle which have previously been mustered into permanent yards do not want to go into those yards and it is therefore quicker to muster them into portable yards which are set up in an area where they are not expecting yards.
Mr Botha and Mr Hoar gave evidence it was necessary to use portable yards both in the general mustering and in catching and clean‑up work. The hilly terrain of Moola Bulla required the use of portable yards in the general muster. Mr Gordon also gave evidence there was no difference in the arrangement from using a permanent yard or a portable yard and that it is was common in the general muster to sometimes use portable yards. In such circumstances the contractor still expected to get paid the same head rate in the general muster whether you use permanent or portable yards.
Mr Botha also explained that the use of portable yards in catching and clean‑up is limited because you're not supposed to leave behind a large number of cattle and therefore there isn't the need for portable yards. However, it can happen that 100 to 150 cattle are left in a paddock and because you wouldn't be able to catch all of them with a bull buggy or motor bikes you would use portable yards. I accept that evidence. In my view the evidence establishes that whether or not portable panels are used is determined by the number of cattle which are to be mustered or captured, whether permanent yards are available for use, and whether it is easier or more efficient to use portable yards. Whether or not portable yards are used is not relevant to whether or not the work is categorised as catching and clean‑up. Contrary to Mr Brennan's explanation it seems to me that normally catching and clean‑up would not involve the use of portable yards because normally the number of cattle to be captured are not large in number and therefore the yards are not required. In rejecting Mr Wright's evidence that the work was catching and clean‑up I have also taken into account the number of cattle which, on the plaintiff's case, were mustered out of Camel/Nymagee of 1,156. That number of cattle alone in my view establishes the work which was performed by the plaintiff was not catching and clean‑up. It was general mustering.
I accept the evidence of Mr Botha, Mr Hoar, Mr Hammar and Mr Gordon that portable yards are often used in a general muster. The use of portable yards does not mean the work being performed is to be regarded at catching and clean‑up work rather than work being undertaken as a part of the general muster. In my view the use of portable yards does not add greatly to the work a contractor is required to undertake and is not relevant to a higher rate being charged for capturing a few remaining cattle left after a general muster. If there was the need to use a lot of portable yards rather than rely on permanent yards that might, in my view, be reflected in a higher head rate being negotiated for the general muster when cattle are handled in bulk. My impression of Mr Wright's evidence was that he regarded the work as catching and clean‑up because the cattle were feral and more difficult to handle than cattle which had been mustered in the previous years than the fact that they were using portable yards.

Credibility

The two principal witnesses in this matter are Mr Brennan for the plaintiff and Mr Botha for the defendant.
Mr Brennan was born and raised on wheat and sheep farms. He is aged 39 years. He left school at 14 years of age. Since then he has worked on farms and later on cattle stations. In approximately 1988, 1989 he went to the Kimberley and worked for Macquarie Mustering. From that time until approximately 2001 he worked on various cattle stations as a head stockman. From 2001 till June 2003 he worked at Killarney Station, which is a cattle station, as the manager.
Mr Botha holds an honours degree in agricultural economics from the University of Freestate in South Africa. Prior to moving to Western Australia in 2004 he conducted a game farming operation in Africa and was also engaged in agricultural consulting. As I have previously noted, he is a director of the defendant company which purchased Moola Bulla in late 2001 and early 2002. From that time until 2006 when the defendant sold Moola Bulla he was responsible for the overall management of the station and was involved in cattle mustering on the station.
Both men, I find, have experience with the operation of cattle stations and the conduct of a cattle muster, are familiar with and, subject to findings I later will make regarding certain aspects of Mr Brennan's evidence and my earlier findings as to what catching and clean‑up work entailed, spoke knowledgeably about how a cattle muster is undertaken and what is involved and necessary in the conduct of a proper cattle muster.
Generally, unless otherwise stated, and leaving aside for the moment Mr Brennan and Mr Botha, I find all the witnesses gave their evidence in an open, straightforward and honest manner, doing their best to recollect circumstances and conversations which at the time would not have seemed significant nor important and for which it could not be expected there would have been any reason for them to have cause to retain precise memories or recollections as to what occurred. Neither counsel suggested any of those witnesses are to be disbelieved or are not creditable witnesses, although on occasions I am invited to find that memories in certain respects are not reliable.
However, in respect to Mr Brennan and Mr Botha both counsel attack the credibility of the other parties' principal witness and invite me to make adverse credibility findings. In his opening address counsel for the plaintiff submitted Mr Botha refused to permit the plaintiff to continue to employ a number of Aboriginal stockmen which was the reason for the delay in the plaintiff proceeding with the muster. By that submission it is at least implied Mr Botha was racist. Mr Brennan's evidence about this issue was rather vague. He did not say that Mr Botha told him he could not employ indigenous stockmen. Rather he seemed to infer from Mr Botha telling him he could not proceed with the mustering because he did not have sufficient stock hands, that Mr Botha was telling him he could not employ indigenous stockmen and was therefore racist. That suggestion or allegation was never put to Mr Botha. I reject it.
In his closing submissions counsel for the defendant submitted the plaintiff through Mr Brennan had made a false claim by "doubling up" the number of cattle mustered as pleaded in par 5(v) of the re‑amended statement of claim.
Mr Brennan described himself as a simple bush person. In his closing address the plaintiff's counsel submitted Mr Brennan was an unsophisticated, simple and uneducated man, having left school at age 14 years. I accept that submission. Mr Brennan on his own admission has a poor memory as to dates, the substance of conversations and the system of documentation in his business. He was often confused about both the documentation generated by his own business and the defendant's business documentation with which he might have been expected to have some familiarity. Some of that confusion might perhaps be explained by his evidence that his wife was responsible for creating and maintaining most of the plaintiff's documentation and Mr Brennan had very little involvement with his business's documentation.
He was very confused as to the circumstances in which the three different versions of the quotations (Exhibits 1, 2 and 9), were produced and provided to the defendant. That confusion was compounded by the fact that the plaintiff's written outline of submissions filed shortly before the trial commenced referred to an earlier version of the quote and not what was agreed by both parties as being the actual final written quotation signed by Mr Brennan and accepted by the defendant.
Further confusion was caused by the reference in his affidavit sworn 30 January 2006 and filed in support of an application for summary judgment, (Exhibit 8), which at par 4 refers to an earlier version of the quotation (Exhibit 2) as being the written quotation which formed the contract between the parties. In cross‑examination Mr Brennan eventually, albeit reluctantly, acknowledged the reference to that version of the quotation in his affidavit was mistaken and incorrect.
He was also confused as to whether all of the versions of the quotes were faxed and mailed to the defendant. Initially he said all of the various versions of the quotes were faxed and posted to the defendant. However, when it was pointed out to him in cross‑examination that par 3 of his statement of claim only pleaded that the written quotation was "submitted to" the plaintiff and not faxed, he was uncertain and confused and could not recollect how the quote had been submitted or provided to the defendant. Nor could he recollect signing the final form of the quote (Exhibit 9), although he acknowledged he had signed it. He was unable to identify or clarify whose handwriting appears on Exhibits 1 and 2.
Significantly, in my view, he had no real recollection of the meeting at the house of Mr Botha at Hovea on 28 January 2005. I shall come back to this meeting later.
Further, when Mr Brennan was cross‑examined about the system by which stores were charged by he and his staff at the station he claimed to be unaware or uncertain as to what the system was, whether he had paid for those stores and whether there was an understanding or agreement with the defendant that the cost of those stores would be deducted from invoices the plaintiff rendered in due course to the defendant. He denied knowing it was a common practice that stores were charged against the station and the cost later deducted from the invoices rendered by the mustering contractor.
I do not accept Mr Brennan's evidence about the stores. In my view he was being, at the least, disingenuous when he claimed not to know how the stores were charged or whether he or the plaintiff were liable for payment of those stores by the cost being deducted from the invoices rendered by the plaintiff to the defendant. He gave that evidence notwithstanding the invoice from Moola Bulla Station to BCM dated 31 March 2005 (Exhibit 13), which in referring to the plaintiff's invoice 00001 recorded the stores charged by the plaintiff and its staff and which was deducted from the amount invoiced by the plaintiff before payment in the sum of $33,071.41 was paid. I also observe par 7 of the further re‑amended statement of claim refers to the deduction by the defendant of $6,305.84 "for stores and supplies purchased by the plaintiff from the defendant". Despite that plea clearly acknowledging the plaintiff purchased stores and supplies from the defendant, Mr Brennan professed not to know whether the stores and supplies were purchased from the defendant.
In my view the plaintiff's documentation was generally unreliable, inaccurate and misrepresented what I find the true position to be, highlighted by the errors in Mr Brennan's summary judgment affidavit to which I earlier referred. Generally, Mr Brennan displayed a lack of attention and consideration and a lackadaisical approach to his business's documentation. For example, there was no proper attempt to explain the handwritten notations which appear on Exhibits 1 and 2 which were tendered as part of the plaintiff's case. Although both Mr and Mrs Brennan gave evidence that they did not know whose handwriting appeared on the documents no explanation was provided which sought to clarify from where the actual documents which were tendered had come from and what might be the source of and reason for the handwriting. The documents were tendered as part of the plaintiff's case. It is in my view unsatisfactory that in a matter such as this where the defendant disputes and denies the authenticity of some of the documentation, and where issues of credibility are likely to turn on whether the authenticity of the documents can be established, that a better attempt was not made to explain the handwriting. The failure to do so leaves me with significant reservations as to the authenticity, accuracy and reliability of much of the plaintiff's documentation.
Mr Brennan's approach to his business's documentation evidences, in my view, a willingness to present and put up documentation which he believes supports the plaintiff's case without any proper consideration or care being given to the documentation to ensure it is accurate and that it represents what it is said to represent. That is demonstrated by the reference to the incorrect quote in his summary judgment affidavit. It is also demonstrated by the reference to the tax invoice 00001 in the sum of $75,900, annexure DRB3 to the affidavit, which self‑evidently by including the typewritten note "This invoice they Payed (sic) only $39,377.25. Amount due on this invoice is $36,522.75", could not have been an invoice the plaintiff issued to the defendant as said by Mr Brennan at par 5 of his affidavit.
The error, putting it neutrally, is compounded by the statement that the defendant paid only $39,377.25 when the amount which was in fact paid, as later acknowledged by Mr Brennan and as evidenced by Exhibit 12, was $33,071.41 after the cost of the stores charged by the plaintiff had been deducted by the defendant..
Although the plaintiff's counsel submits, in effect, that this lack of attention to detail, again putting it neutrally, is because Mr Brennan is an unsophisticated and uneducated person, in my view his evidence regarding his business's documentation cannot be characterised in that way. In my view it reflects poorly on his credibility and his reliability as a witness who can be believed. While at times when questioned about some of the defendant's documentation he did genuinely appear to be confused, which may in part be explained by his lack of sophistication and education, I am unable to accept he was not more familiar with and understanding of what seems to me to be reasonably basic documentation with which anyone with the same sort of experience as his in the mustering industry must be familiar and must be able to understand.
Mr Brennan often refused to properly answer straightforward questions asked of him in cross‑examination. An example is (at T155) when asked whether he was capable of mustering 20,000 cattle he kept answering "There wasn't 20,000 head of cattle to muster" until I asked him the question, when he finally answered he would have been able to. Such instances in my view demonstrated a willingness on his part to only answer questions in a way which he thought assisted his case. I formed the impression he was worried that by accepting he was capable of mustering 20,000 head of cattle he was conceding there were 20,000 head of cattle to muster which might damage his, or the plaintiff's, case. There were other instances where, admittedly after some prolonged cross‑examination in which his attention was drawn to an error or inconsistency in the documentation, where he had in varying ways answered similar questions, he looked through documents not relevant to the question, as though hoping the question would go away, and chose not to answer any further questions. His demeanour and response on those occasions suggested a reluctance to deal with issues when confronted with inconsistencies or errors in his evidence and the documentation.
I shall later outline further instances which in my view reflect adversely upon Mr Brennan's credibility. Generally I found Mr Brennan to be an unsatisfactory witness.
In my view Mr Botha gave his evidence in an open, straightforward and considered manner. He impressed me as a careful and measured person, particularly in his business dealings with Mr Brennan. He generally had a clear recollection and memory of discussions between himself and Mr Brennan. On those occasions when his memory was uncertain he willingly conceded that. He also conceded, when it was put to him in cross‑examination, that the quotation, Exhibit 9, did not specifically state certain matters he said were discussed or agreed between himself and Mr Brennan, such as the requirement to have eight stock camp staff. He was prepared to concede, with the benefit of hindsight, that some matters could have been better spelt out or made clearer. Mr Botha also struck me as being very careful and particular with his or the defendant's documentation. He had a good understanding of the documentation and was able to easily explain what it meant. His care and attention to detail is reinforced by him making notes of his meetings and conversations with Mr Brennan.
Generally, where the evidence of Mr Brennan and Mr Botha is in conflict I prefer the evidence of Mr Botha.

The 2004 mustering season

Prior to 2004 Moola Bulla undertook each season's mustering using its own staff without employing a contract mustering team. However, after Mr Ben Hoar was appointed the station manager in 2004, following the previous manager leaving, there was insufficient staff to carry out the 2004 mustering and a decision was made to employ outside contractors to undertake or complete the 2004 muster. Mr Botha met Mr Brennan during 2004 when Mr Brennan came to Moola Bulla. Mr Botha explained that Mr Brennan was employed to assist the station's own crew to complete the muster and finish off jobs towards the end of the season. Mr Brennan gave similar evidence saying he worked at Moola Bulla at the end of the season from approximately August, September through until October 2004. He performed general mustering work. He brought his own team consisting of eight people including himself.
According to Mr Botha, during the time Mr Brennan worked at Moola Bulla in 2004 there were a number of discussions between the two of them about what arrangements Moola Bulla intended to make regarding the 2005 mustering season. In 2004 Mr Brennan had his own crew which worked with the Moola Bulla crew. Mr Brennan told Mr Botha that he only had half his crew with him and had other crew and equipment on another or other stations. Mr Brennan explained he did contract mustering and requested the opportunity to undertake the 2005 muster for Moola Bulla. Mr Botha said he told Mr Brennan he would give him the chance to quote for the 2005 muster.
Mr Brennan said he had no recollection of a specific conversation but it may have come up in conversation.
Mr Botha also gave evidence that on a number of occasions Mr Brennan represented to him that he had the capacity to carry out large scale mustering without any assistance. Mr Brennan denied that he ever said that or made that representation.

I accept Mr Botha's evidence. It is plausible. It makes sense that Mr Brennan was keen to be given the mustering contracting work for the following season and would obviously have represented himself as competent and capable of carrying out the large scale mustering which he knew Moola Bulla would require. I find that Mr Brennan spoke with Mr Botha on a number of occasions during 2004 wanting to undertake the muster at Moola Bulla in 2005. I also find Mr Brennan represented to Mr Botha that he was capable of doing a full muster at Moola Bulla and would bring all of his staff and equipment to undertake the muster.

28 January 2005 meeting

As I have previously observed Mr Brennan said he had no real recollection of the meeting on 28 January 2005. He recalled visiting Mr Botha's house in Hovea. He visited with Mr Ben Hoar who he regarded as a mutual friend. He did not regard the occasion as a meeting. Rather it was simply an occasion to catch up for general social conversation. He thought they might have talked about the last season being dry, but did not have any recollection of any detailed discussion about mustering at Moola Bulla. It was just a social occasion. He did not take any paperwork along with him. Although he had no real recollection of the meeting, he was certain he and Mr Botha did not discuss his original quote (Exhibit 1) which Mr Botha said was too expensive or that Mr Brennan then got on to the telephone to his wife and asked her to amend the quote on the computer and email it back to them. He agreed there was some discussions with Mr Botha at some time, but not at the meeting on 28 January 2005, about the original quote being too expensive and having to revise the quote. He also recalled at some time there was a discussion with Mr Botha that Mr Botha was not happy about having a rate for catching and clean-up work to include a day rate in the quote, but that Mr Brennan insisted on a day rate being left in the quote and Mr Botha agreeing to leave the day rate in the quote.
There is a significant difference in the evidence of Mr Brennan and Mr Botha as to how the various versions of the plaintiff's quotations were generated, what happened to them and the circumstances in which they were provided to the defendant. In his evidence‑in‑chief Mr Brennan said that after the meeting in January 2005 he was contacted by Mr Hoar asking him to put a quote through for the 2005 season. The quote (Exhibit 1) was then prepared by Mrs Brennan at the request of Mr Brennan who provided her with the details. The quote according to Mr and Mrs Brennan was both faxed and later posted to the defendant.
Mr Brennan said he later received a phone call from Mr Hoar advising the price in the quote was too steep. In response to that Mr Brennan with his wife's assistance prepared another quote which reduced the rate from $12 per head plus GST to $9.50 per head plus GST. That quote (Exhibit 2) was also faxed and mailed to the defendant. Mr Brennan did not know what had happened to the originals of the two quotes. He thought they may have been lost when he moved from Katherine to Broome.
Mr Brennan went on to explain that after the second quote was sent he noticed there was nothing in it to do with the quarters, nor anything to do with the horses to be negotiated or a chuck wagon which they had previously used in 2004. He therefore caused a further quotation to be sent which in the second line stated, "Ben will let us know a price on quarters". That quote was signed by Mr Brennan and he caused it to be sent to the defendant. He said he did not have the original or an original copy, and thinks it must have been lost in transit. The originals would have been kept in a file. A copy of that document became Exhibit 3.
In cross‑examination Mr Brennan was asked about the facsimile imprint at the top of Exhibit 1 and the date 21/12/2003. Mr Brennan was unable to explain the date. Mr Brennan said it was not common practice for he or his wife to put a cover sheet on documents faxed by them. He did not know whether there was a facsimile cover sheet or a facsimile transmission report for any of the quotes which he said was faxed by he or his wife to the defendant. I have previously observed he did not recognise the handwriting on the quotes.
Mr Brennan was at a similar loss in relation to Exhibit 2. It was pointed out to him that Exhibit 1 referred to horses to be negotiated and the chuck wagon and also that Ben would let them know about a price on the quarters. Therefore the reason he had previously given for his sending Exhibit 2, which was because of a concern he had omitted reference to those matters, could not be correct. Mr Brennan was unable to explain how the words "horses to be negotiated/chuck wagon" were contained in both Exhibits 1 and 3 but not in Exhibit 2.
Mr Brennan was then shown the original of the quote (Exhibit 9) signed by him with the green lettering "Brennan Pastoral Company". It was also pointed out to Mr Brennan that Exhibit 3 and Exhibit 9 contain the words "on extra paddocks not mustered by BCM" which were not contained in either Exhibits 1 or 2.
Mr Brennan was, in my view, unable to satisfactorily explain the differences between the wording in the quotations. He was unable to satisfactorily explain why there were no originals or original copies, of Exhibits 1 and 2 which he said had been sent to the defendant or produce evidence confirming the documents had been sent by facsimile transmission. His evidence‑in‑chief that he did not know what had happened to the original of the quotation signed by him which later became Exhibit 9 and which was produced by the defendant, having been discovered by the defendant, is difficult to understand. It reinforces my earlier findings regarding Mr Brennan's credibility. I do not accept Mr Brennan's explanation as to the circumstances in which the quotations were generated and sent to the defendant. Other than the mere fact there is a copy of a copy of the quotation Exhibit 2 there is no objective evidence that it was ever sent to or received by the defendant.
In my view the defendant's record‑keeping is reliable and its documentation accurate. Had the quotation been sent to the defendant as explained by Mr Brennan I believe the defendant would have retained it. I find the defendant does not have the quotation which confirms my view the quotation was never sent to the defendant.
Mr Brennan also denied that the various matters set out in the quote, such as what equipment had to be provided, what panels had to be used to set up a loading ramp and race and portable yards or that a road train had to be provided, were discussed. Nothing specific was discussed. He denied there was any discussion about having to supply eight stock camp staff to perform the muster. He said there was a later discussion with Mr Botha about supplying a road train, but he could not recall when that happened. He denied he agreed to provide a road train. He said it was just an option if he and Mr Botha later agreed that a road train be provided.
He was cross‑examined about Mr Botha's handwritten notes Mr Botha made at the time of the meeting (Exhibit 36). He denied that at that meeting he revised his quote from $12 per head to $9.50 per head without a helicopter and with a full plant to be provided by him. He denied there was a discussion about hiring a house near the horse yards. He denied there was a discussion about buying horses for $1500 per horse, but said there was a later discussion about buying horses when he got to Moola Bulla.
He could not recall how long he was with Mr Botha and Mr Hoar.
Mr Botha said the meeting took approximately two to three hours. He explained Mr Brennan brought an earlier version of the quote (Exhibit 1) along with him to the meeting and they went through it and discussed every single item on it in great length. Mr Botha spelt out what he needed and what he wanted done. Mr Hoar also added to that. Mr Botha did not know what happened to the original document Mr Brennan brought along with him to the meeting. He did not regard it as important because it was changed and a later quote which was signed by Mr Brennan (Exhibit 9) was the one which was accepted.
The initial quote contained a head rate of $12. Mr Botha was not happy with that rate and wanted the rate brought down because there was such a large number of cattle to be mustered.
Mr Botha said that they always worked on more or less 50,000 head of cattle being on the station and it was proposed that the station crew muster half the cattle and Mr Brennan's crew the other half. They therefore worked on 20,000 to 25,000 head of cattle which needed to be mustered by BCM.
In his evidence Mr Brennan agreed he knew there would be two separate mustering crews, one provided by Moola Bulla and one provided by himself.
Mr Botha explained they worked through the plant that was needed for a muster of that size. Because it was a big number to be mustered they discussed all of the equipment which would be needed. It was discussed that BCM would run a totally separate camp at Dougal's and that Mr Brennan would be in complete control of that camp. It was decided that BCM would use Dougal's as the campsite.
Mr Botha said he told Mr Brennan he must have at least 200 panels because Mr Brennan was talking about using a figure eight portable yard and you cannot put up such a yard without at least 100 to 150 panels. He said Mr Brennan agreed to that.
Mr Botha also said to Mr Brennan that he had to have a refrigerator and had to have his own full fuel tanker on a trailer. Mr Brennan said he had one and that when the station got its fuel delivered from Kununurra he, that is, Mr Brennan, would fill his own fuel tanker and fill his vehicles from there and not from Moola Bulla's tanker.
It was also discussed that it was necessary to run a cool room because they did not want Mr Brennan to come and get meat out of the station's cool room. The station was supplying meat so that Mr Brennan had to have his own cool room to keep the meat and run his own camp.
They also discussed using helicopters. Moola Bulla had its own helicopter and they discussed that they would hire another helicopter so that two helicopters could be used between the two camps. Mr Botha told Mr Brennan that all their, that is the defendant's, own equipment that Mr Brennan had used the previous year, Moola Bulla would need for themselves and the defendant would not be able to share anything.
Mr Brennan said he had a road train for cattle carting and Mr Botha said yes, they would need that and that was therefore put in the quote.
There was also discussion about the number of stock camp staff which would be required. Mr Botha said he told Mr Brennan there would have to be at least eight stockmen in the camp. It was discussed that once mustered, cattle must never stay in their yards more than 24 hours. Mr Brennan said he had a head stockman Carl Wright. Mr Hoar said he knew him and that he was good. Mr Botha said he told Mr Brennan he needed at least eight camp crew without the cook and without himself. Mr Botha also expressed to Mr Brennan that he wanted him personally at the station all of the time and not mustering on other places that he had told him he had crew at.
They also discussed the processing of the cattle and Mr Hoar said that only Carl Wright or Mr Brennan himself could handle the knife in the castration and dehorning process.
When discussing the base which was to be used by BCM Mr Brennan, Mr Botha explained, said he wanted to use one of the empty staff quarters as a base just to receive phone calls and send facsimiles if need be and Mr Botha said that was okay but that Mr Brennan was not permitted to live there, he was required to stay out with his camp and, he said, Mr Brennan agreed to that.
Mr Botha said they discussed the catching and clean‑up in the quote and said he did not want it in there because he sought an assurance from Mr Brennan that a quantity of cattle be mustered out of each paddock of 95 per cent. Mr Botha could not recall whether it was he that came up with that number or Mr Brennan but it was the number which they both discussed and agreed on. If less than 95 per cent were mustered Mr Brennan would have to go back into the paddock and do catching and clean-up on his own cost. If it was above 95 per cent then Mr Botha would make a decision whether he would go ahead with that work. Mr Botha did not want the day rate and told Mr Brennan, that because he was self-sufficient and a big contractor, he should be able to manage and do everything himself, but that as Mr Brennan asked repeatedly that a day rate be left in the quote, Mr Botha agreed to leave it on the condition that it would have to be agreed by him during the course of the mustering. He also ensured it was stated on the quotation that the day rate only applied in relation to paddocks not mustered by BCM. He insisted on the words "on extra paddocks not mustered by BCM" to be added to the paragraph referring to catching and clean‑up work. Those words were not contained in the written quote Mr Brennan brought with him (Exhibit 1).
Mr Botha said that after they had discussed most of the points on the quote and reached agreement Mr Brennan telephoned his wife and told her to email the quote through to Mr Botha at his home. Mr Brennan gave his wife Mr Botha's email address and it was emailed through. There were difficulties opening it on Mr Botha's laptop because it was a .doc file not a Word document and there was a bit of mucking around for quite a while until Mr Botha was able to open it. He and Mr Brennan then worked on the quote and made the alterations by Mr Botha typing the alterations on his laptop. He then printed off the quote which Mr Brennan signed and left with Mr Botha. That document is Exhibit 9. It bears the green coloured letterhead "Brennan Pastoral Company".
The email cover sheet, if that is the correct expression, which indicates the original quote was emailed to an address, [email protected] from "Mandi Brennan" – [email protected] is Exhibit 10.
Mr Ben Hoar also gave evidence about the meeting. His evidence on the whole is consistent with and corroborates Mr Botha's evidence. Although Mr Hoar said he only had a vague recollection of the meeting, which is unsurprising, his evidence about what was discussed at the meeting is consistent, in a number of important respects, with Mr Botha's evidence. Mr Hoar thought the meeting took possibly an hour. He said they discussed the mustering procedure and what was to happen if BCM were given the mustering contract. General guidelines and what was to be expected were discussed. The equipment and staff which would be needed was discussed. Mr Hoar told Mr Brennan he would need somewhere near 10 people to operate a stock camp. Mr Brennan agreed with that. It was expected that they would all be experienced people.
Mr Hoar was, he said, not 100 per cent sure whether any documents were discussed at the meeting. He could recall something was, he thought, faxed through or sent but could not recall when. He confirmed he had seen the original of the quotation, Exhibit 9, signed by Mr Brennan but could not recall when he had first seen it. He also recalled that at the meeting there was a discussion about the price per head being reduced. The original quote was $12 per head. Mr Botha was not happy and negotiated the price down. He cannot recall what the price was negotiated down to on that day. He could not recall the original of the quotation (Exhibit 9) being present at the meeting. Mr Hoar also agreed there was discussion about a day rate and that Mr Botha expressed dissatisfaction but agreed to leave it in because Mr Brennan asked for it to be left in on the basis it would only apply if it was needed.
I have also earlier referred to the notes made by Mr Botha at the meeting (Exhibit 36) which in my view provide further support for Mr Botha's evidence.
The fact that the original of the quote (Exhibit 9) signed by Mr Brennan does not have any facsimile transmission markings on it, unlike copied earlier versions of the quotes (Exhibits 1 and 2) provides yet further support for Mr Botha's evidence that the original quotation was not faxed or posted to the defendant but was created and provided to the defendant in the way explained by Mr Botha.
Mrs Brennan was asked in cross‑examination whether her husband telephoned her asking her to email to Mr Botha the earlier version of the quote and whether the subsequent difficulties explained by Mr Botha in opening the attached quote had happened. She was unable to recall whether she had emailed a copy of the quote to Mr Botha. She explained her normal practice was to send the quote by facsimile and then to post it. However, she did not know whether she had done that on this occasion.
Mr Botha was not seriously challenged in cross-examination about his evidence as to what was discussed at the meeting and how the original quotation was produced. He had a clear and detailed recollection, independently of his notes, of what was discussed and what occurred at the meeting on 28 January 2005. His evidence as to what was discussed and what occurred reinforces my earlier observations about him as a witness, that he is a careful person with attention to detail. I have no hesitation in accepting in its entirety his evidence as to what was discussed and what occurred at the meeting. I also accept Mr Hoar's evidence as to what was discussed at the meeting as summarised above. Neither was Mr Hoar seriously challenged in cross‑examination as to his evidence as to what was discussed at the meeting. It was not put to him that he had discussed over the telephone with Mr Brennan the initial quote and requested Mr Brennan to send a further quote with a reduced head rate as explained by Mr Brennan. Neither was it suggested to him that he had received the second quote (Exhibit 2) and had spoken to Mr Brennan about that.
I therefore find the final quotation which was signed by Mr Brennan was produced after an earlier version of the quote (Exhibit 1) was emailed by Mrs Brennan to Mr Botha at the request of Mr Brennan on 28 January 2005. After some initial difficulties the emailed quotation was opened by Mr Botha using his laptop computer and was amended to reflect the points of discussion and agreement at the meeting and then printed on Mr Botha's printer. It was then signed by Mr Brennan and left with Mr Botha. To my mind it makes sense that the quotation was signed in the presence of and handed to Mr Botha at the meeting on 28 January 2005. Mr Brennan's explanation as to the history of the quotes and how they were provided to the defendant is implausible. In examination‑in‑chief Mr Botha said he had not received Exhibit 2. I accept his explanation and reject Mr Brennan's evidence. In my view Mr Brennan, having no clear memory about how the quotes came to be, and having read copies of the quotes which he has obtained from his computer and without properly reading the terms of the various quotes, has created an explanation as to how the quotes came to be prepared and were sent to the defendant. The fact he was unaware the original quote signed by him (Exhibit 9) was not in existence demonstrates how little care and attention he has paid to the documentation. It also demonstrates his willingness to create and provide an explanation he believes supports his case.
A further matter which in my opinion demonstrates Mr Brennan's unreliable and unsatisfactory approach to the plaintiff's documentation and his lack of care and attention to detail is his evidence about Exhibit 2. In examination‑in‑chief he said that that quotation was sent to the defendant after a telephone call from Ben Hoar responding to the initial quote (Exhibit 1) and advising the quote was too high in relation to the $12 per head of cattle mustered. He therefore prepared the second quote with a rate of $9.50 per head of cattle and sent that to the defendant by facsimile. It was prepared by his wife. However, Exhibit 2 does not appear to be an amended version of Exhibit 1. There are significant differences. The second paragraph in Exhibit 1 "Ben will let us know a price on quarters" is not contained in Exhibit 2. There is a reference to "Toyota's" in Exhibit 2 but not in Exhibit 1. There is a reference to truck and trailer, motorbikes, catchers in Exhibit 2 but not in Exhibit 1. Exhibit 1 refers to "Horses to be negotiated/chuck wagon" yet there is no reference to that in Exhibit 2. The last paragraph on Exhibit 2 refers to "BCM have there [sic] own public liability/worker comp policy" but there is no reference to that in Exhibit 1.

In relation to whether the plaintiff breached the contract by failing to have the agreed number of staff at Moola Bulla, I have at par 158 found that as at 3 April 2005 the plaintiff had a crew of six which included Mr Brennan and the camp cook, Mr Fraser. The crew was increased to seven during April when Mr Demi arrived. Mr Gordon and his crew then arrived on 24 April 2005. In my view, until Mr Gordon and his crew arrived, the plaintiff did not have sufficient crew to be able to properly and diligently undertake the muster. Although the plaintiff's crew were experienced and competent and they were able to undertake the muster of Top Sisters and mustered, I have found, 1,176 cattle, the muster proceeded less efficiently and diligently than would have been the case had a crew of eight plus a cook and Mr Brennan been available to undertake the muster. Although Mr Botha conceded the plaintiff was able to muster Top Sisters in April with seven crew, he said the muster would have been performed far more quickly had a full crew been available. I accept that evidence.
I therefore find that until 24 April 2005 when Mr Gordon and his crew arrived the plaintiff was in breach of an express term of the contract by failing to have available eight stockmen plus a camp cook and Mr Brennan to undertake the muster.
Before proceeding to further consider the defendant's counterclaim, I think it is important to set out a brief chronology as follows:
22 February 2005    Mr Brennan arrives at Moola Bulla with his head stockman, Mr Wright and a stockhand, Mr Webster.
29 February 2005    Mr Jones and Mr Fraser arrive at Moola Bulla.
March 2005Mr Charlie, another stockhand, arrives.
March 2005Plaintiff musters and draughts horses and selects its own horses for use.
March 2005Plaintiff sets up and prepares campsite at Dougals.
March 2005Plaintiff's Kaiser Mack truck arrives and a storage and sea container also arrive at Moola Bulla.
12 March 2005       Mr Brennan and Mr Hoar make Sisters/Gnewings agreement.
13 March 2005       Mr Botha arrives at Moola Bulla.
22 March 2005       Plaintiff and defendant jointly muster Sisters paddock.
26 March 2005       Plaintiff and defendant jointly muster Gnewings paddock.
31 March 2005       Invoice for 3,505 sale cattle mustered sent by plaintiff to defendant and paid by defendant.
3 April 2005          Meeting Mr Brennan, Mr Botha, Mr Hoar when it was discussed the plaintiff did not have sufficient equipment or people.
3 April 2005 to      Plaintiff stood down and prevented from 14 April 2005   mustering by Mr Botha.
15 April 2005 to     Plaintiff undertaking further repairs at
20 April 2005          Dougals and further work with horses   purchased by it.
April 2005Mr Demi, a further stock-hand for the plaintiff, arrives.
18 April 2005        Further meeting with Mr Brennan, Mr Botha and Mr Hoar, when there were further discussions about when the plaintiff’s full gear and staff would arrive.
21 April 2005        Plaintiff musters Top Sisters.
22 April 2005        Mr Botha checks cattle mustered from Top Sisters held at Dougals, revises muster summary completed by Mr Wright, prepares and hands to Mr Brennan at a meeting the letter of 22 April 2005 which, inter alia, states that if a full crew, being 10 station‑hands and all equipment, do not arrive by 24 April the contract would be cancelled.
24 April 2005        Mr Gordon and his crew arrive.
30 April 2005        Plaintiff mustering Camerons and Camel/Nymagee paddocks.
3 May 2005Argument between Mr Brennan and Mr Botha.
5 May 2005Plaintiff faxes two invoices to defendant.
8 May 2005Mr Brennan departs Moola Bulla.
Therefore, putting to one side the cattle jointly mustered from Sisters and Gnewings, the plaintiff only mustered 1,176 head of cattle from Top Sisters on 21 April 2005 before Mr Gordon and his crew arrived. By that time the plaintiff had been at Moola Bulla for two months. In my view that underlines the defendant's complaint that the plaintiff was not fully or adequately equipped or staffed to undertake the muster until Mr Gordon arrived and did not proceed with the muster with due diligence.
In his closing submissions the plaintiff's counsel submitted that, arising from the argument between Mr Botha and Mr Brennan on 3 May 2005, the parties agreed to mutually abandon further performance of the contract and therefore, as I understand the submission, the plaintiff was relieved from further performing its obligations pursuant to the contract and is therefore not in breach of the contract and the defendant is consequently not entitled to maintain a claim for damages for breach of the contract. Two matters arise from that submission. First, the amended defence to counterclaim does not plead the mustering contract was mutually abandoned so as to relieve the plaintiff from further performance. There were a number of amendments to both parties' pleadings in the lead up to and during the trial. Although the plaintiff amended its defence to counterclaim to plead the contracts for the purchase of the Toyota and the horses were abandoned, it did not plead the mustering contract was abandoned. Therefore, in my view, the plaintiff is not permitted to propound the case based upon mutual abandonment of the mustering contract.
Although I was not referred to any authorities, my understanding of the submission was based upon the principle set out in Summers v The Commonwealth(1918) 25 CLR 144 at 151‑152 when Isaacs J said:
"Whatever the terms of a contract may be, it is possible for the parties so to conduct themselves as mutually to abandon or abrogate it. A position not altogether dissimilar arose in the case of De Soysa v De Pless Pol ((1912) AC 194). There, neither party had repudiated or refused to perform the contract, nothing in the nature of rescission had occurred, but, said Lord Atkinson for the Privy Council ((1912) AC at p 202): - 'One party to a contract is not bound to give the other unlimited time after a day named to do that which the other has contracted to do. There must be some point of time at which delay or neglect amounts to refusal … In truth, the projects seem to have been to a great extent, if not altogether, abandoned by all the parties concerned.' In my opinion, that is the legal position here. Informally, but effectively, the parties have so acted in relation to each other as to abandon or abrogate the contract."
The principle was further explained in DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1976-1977) 138 CLR 423 per Stephen, Mason, Jacobs JJ at 434 when they observed:
"… Neither party intended that the contract should be further performed. In these circumstances the parties must be regarded as having so conducted themselves as to abandon or abrogate the contract. The position is similar to that with which Isaacs J dealt in Summers v The Commonwealth. The plaintiff did not succeed in his action for damages for breach of contract, but on the other hand the defendant had not rescinded. Time passed during which neither party took any steps to perform the contract. It was held that the parties had so conducted themselves as mutually to abandon or abrogate the contract."
In my view if the plaintiff maintained a case based upon the principle of mutual abandonment as explained in the above authorities, it was incumbent upon it to plead that and the consequences which followed in relation to the defendant's entitlement to maintain a claim for damages for breach of contract.
The second issue which arises is in relation to the factual findings I have made at par 209 above in relation to the circumstances in which Mr Brennan departed Moola Bulla. It follows from those findings that there was not a mutual abandonment of the contract. The plaintiff abandoned the contract when Mr Brennan and his crew departed Moola Bulla. Although Mr Botha was not unhappy Mr Brennan left, and had on earlier occasions attempted to and discussed mutually abandoning the contract, Mr Brennan had always wanted to continue with the contract. After Mr Gordon arrived there was, from Mr Botha's point of view, some steps being taken to perform the plaintiff's obligations pursuant to contract and Mr Botha was, I find, prepared to proceed with the contract. He did not agree that the contract should be abandoned.
Therefore even if I had been prepared to countenance a submission of mutual abandonment of the contract, notwithstanding the absence of any such plea, I find that there was no mutual abandonment.

Toyota

There is no real dispute that the plaintiff purchased the Toyota from the defendant in March 2005 for the agreed sum of $2,500 plus GST and has failed to make a payment in that sum to the defendant. The original defence to counterclaim simply denied the counterclaim. However after the plaintiff's counsel opened the plaintiff's case, the defendant's counsel raised a number of issues arising from the opening and submitted certain matters had not been pleaded. I therefore granted the plaintiff leave to file an amended reply and defence to counterclaim. By that amended defence, it is pleaded it was a condition of purchase of the Toyota that the purchase price would be payable out of the moneys payable by the defendant to the plaintiff for performing the mustering contract and the amount was not payable until June 2005. In my view there was no such condition. Mr Botha's evidence, which I accept, was that he agreed to deduct the purchase price of the Toyota from the amount the plaintiff would in due course invoice the defendant in respect of the mustering services it was to perform. He did that at the request of Mr Brennan who said he was not in a position to pay for the Toyota at that time. Although in cross‑examination Mr Botha accepted it was a condition of purchase of the Toyota that payment would come from the proceeds of the muster, it does not in my view follow that that was a condition of the purchase. It was not a condition of the purchase of the Toyota. Mr Brennan had the use of the Toyota and left the Toyota on Moola Bulla when he departed Moola Bulla. In my view it is clear the plaintiff purchased the Toyota from the defendant in the sum of $2,500 plus the GST and remains liable to the defendant for payment of that sum and I so find.
Further, if I am wrong in my finding that it was not a condition of the purchase of the Toyota that the purchase price would be payable from the monies payable to the plaintiff for performing the mustering contract, I find that in any event the plaintiff is liable for payment of the purchase price from the proceeds of so much of the muster as was completed by the plaintiff.

Horses

There is no real dispute the plaintiff purchased 19 horses from the defendant at the rate of $1,500 per horse and that the plaintiff has not paid the purchase price. Again, following the plaintiff's counsel's opening, the defendant's counsel submitted that issues raised in opening regarding the purchase of the horses had not been pleaded and I gave the plaintiff leave to address that issue in its amended reply and defence at counterclaim. The issue is addressed at par 6 of the amended defence to counterclaim. It is pleaded, similarly to the Toyota, that it was a condition of purchase of the horses that payment would only be payable out of the moneys payable by the defendant to the plaintiff for the mustering contract.
In my view there was no such condition to purchase of the horses. Mr Botha for the same reasons he agreed to delay seeking payment for the Toyota agreed to delay seeking payment for the horses until the plaintiff rendered an invoice for the mustering services performed by it. It was not a condition of the purchase. Although Mr Botha also accepted, in cross‑examination, that it was a condition of purchase of the horses that payment would come from the proceeds of the muster, I do not consider that by that he meant the purchase price was only payable once an invoice was rendered by the plaintiff for the mustering services performed by it. He simply agreed to delay payment at Mr Brennan's request because Mr Brennan said he was not in a position to afford to pay for the horses at that time.
In any event if it was a condition of the purchase the plaintiff has now rendered invoices to the defendant for the mustering services performed by it and the defendant is entitled to payment of the purchase price.
The plaintiff also points to the typewritten breakdown of numbers mustered and processed provided by the defendant to the plaintiff with its facsimile of 11 May 2005 (Exhibit 30) which set out what the defendant then believed it owed the plaintiff for the cattle mustered by the plaintiff. The summary included sums to be deducted for stores charged by the plaintiff and also the sum of $2,500 plus GST for the Toyota. It did not include a deduction for the horses. The plaintiff further points to an earlier version of that summary (Exhibit 60) which referred to the horses but made a nil deduction.
By its amended defence to counterclaim the plaintiff also pleaded at par 5(b) the plaintiff was not obliged to complete the purchase of the Toyota because the defendant refused to perform the mustering contract by making payment to the plaintiff and thereby abandoned the contract. It is not clear whether the contract which it is pleaded was abandoned is the contract for the purchase of the Toyota or the mustering contract. I take it to refer to the contract to purchase the Toyota. I do not accept the defendant abandoned the contract to purchase the Toyota with the consequence the plaintiff was no longer liable for payment of the purchase price. In my view it was the plaintiff who abandoned the Toyota on the station when he departed. It is probable, given the circumstances in which I have found Mr Brennan departed Moola Bulla, that he decided he no longer he had any use for the Toyota and for the horses and simply abandoned them by leaving them on the station. Notwithstanding he left the Toyota and the horses on the station, in my view both the Toyota and the horses had been purchased by the plaintiff from the defendant and the plaintiff remained liable for payment of the purchase price which was payable by virtue of the agreement reached between Mr Brennan and Mr Botha when the plaintiff was later paid for the mustering services. As the plaintiff's claim is for payment of the those mustering services, payment of the purchase price for the Toyota and the horses by virtue of that fact becomes payable.
The plaintiff submits, in effect, that those documents show there was not a concluded or binding agreement to purchase the horses. Mr Botha explained that at the time the summary was prepared, he had prepared yet a further version of the summary which included a deduction for the horses purchased in the sum of $1,500 per head plus GST. However, after the calculations were made to include a deduction for the horses, the position arrived at was that the plaintiff owed money to the defendant. Mr Botha said he knew he was not going to get money out of the plaintiff and the plaintiff was expecting to receive some payment for the mustering undertaken by it. He was busy at the time and wanted to resolve the dispute between them so instructed Ms Waddell to revise the summary to delete the deduction for horses and to make a payment to the plaintiff in the hope that that would resolve the matter.
I accept that evidence. In my view the two versions of the summary, which do not make a claim for a deduction for the purchase price for the horses is not a recognition or admission that there was no agreement to purchase the horses and no liability on the part of the plaintiff for payment of the purchase price.
As I have earlier noted, the defendant sold the plaintiff's horses, after the plaintiff abandoned the horses and refused to collect them from Moola Bulla at an auction on 25 July 2005 for an average price of $551.47. Accordingly, I find the plaintiff is liable to the defendant for payment of the difference between the purchase price and the sale price in the sum of $18,022 as pleaded in par 12(2) of the re‑amended counterclaim.

Stores charged by Mr Brennan and the plaintiff

During the course of the trial I gave the defendant leave to re‑amend its counterclaim to further particularise the basis upon which the defendant says there was a liability on the part of the plaintiff to reimburse the defendant in respect of stores charged by Mr Brennan and his staff while at Moola Bulla.
I have already found that Mr Brennan's explanation as to how the stores were to be paid and the agreement between the parties as to the basis upon which the stores would be charged and paid should be rejected. In my view it was clearly understood by him that the plaintiff would be liable to the defendant in respect of stores charged by Mr Brennan and his staff. It was also clearly understood that the cost of those stores would be deducted from the amounts invoiced by the plaintiff to the defendant. His wife understood that. Ms Waddell gave evidence, which I accept, that it was a common practice on cattle stations. It was also consistent with the evidence of Mr Gordon. I have also earlier noted that par 7 of the further re‑amended statement of claim pleads the plaintiff purchased stores and supplies from the defendant and acknowledges the entitlement on the part of the defendant to deduct the sum of $6,305.84 from the first invoice rendered by the plaintiff. It is therefore difficult to understand why this was an issue at trial. Unfortunately a considerable and unnecessary amount of time was taken up with what, at the end of the day, was a relatively minor issue.
Accordingly, I find the plaintiff purchased stores from the defendant and is liable to the defendant in the sum of $6,861.50 for payment of the stores purchased.

Engaging of alternative road trains and transport contractor

At par 12(4) of its counterclaim, the defendant claims the sum of $32,450 being the difference in the cost of engaging the alternative transporter/contractor at $2,000 per day plus GST and the agreed rate with the plaintiff of $1,500 per day plus GST for a total of 59 days. The claim relates to paddock carting. Mr Brennan explained that paddock carting is the internal transporting of cattle from one part of the station to another.
I have already found it was a term of the contract the plaintiff would provide a road train for paddock carting at a cost of $1,500 per day plus GST as set out in the quotation. The plaintiff failed to provide the road train. I am satisfied it was necessary and reasonable on the part of the defendant to engage an alternative transport contractor.
The basis of the defendant's calculation of the transportation costs is set out in the bundle of tax invoices of Hammaco Pty Ltd (Exhibit 34) and the defendant’s trucking expenses record of invoices (Exhibit 47). I had some difficulty in being able to extract from the Hammaco invoices exactly what items related to paddock carting and what related to separate freight carting outside Moola Bulla. Further, the trucking expenses summary of invoices refers to invoices not included in the bundle of invoices. There is also a reference to another supplier, Jetty Dip Yards. Although Mr Hammar explained that he charged a daily rate of $2,000 plus GST, and when he worked for less than a day he charged a reduced rate, the invoices reflect varying rates. For example in tax invoice 14, various items referring to one day paddock carting are charged at $1,500 per day, and other items which refer to half a day paddock carting are charged at $500 per day.
From the bundle of Hammaco tax invoices I calculate there was 46.5 days of paddock carting for a total cost of $84,400 or $1,815 per day. If the plaintiff had undertaken the paddock carting at $1,500 per day for 46.5 days, the total cost would have been $69,750. Therefore the difference, or the extra cost to the defendant, is $14,647.50 plus GST of $1,464.75, a total of $16,112.25 inclusive of GST.

I therefore find the defendant is entitled to the sum of $16,112.25.

Replacement mustering contractor

At par 12(5) of its counterclaim the defendant pleads that as a result of the plaintiff's breach of contract by leaving Moola Bulla it was obliged to engage a replacement contractor to complete the muster at a cost of $11 per head of cattle mustered. The contractor mustered 5,527 head of cattle which, implicitly, the defendant pleads would have been mustered by the plaintiff had it performed its obligations to undertake the mustering pursuant to the contract. I accept the replacement contractor mustered 5,527 head of cattle as set out in the contract mustering summary (Exhibit 48). I also accept the additional cost incurred by the defendant $1.50 per head of cattle was reasonably and necessarily incurred and that such a sum represents the measure of the loss and damage suffered by the defendant as a result of the plaintiff's breach of contract by failing to complete the mustering pursuant to the contract.
I therefore award the defendant the sum of $8,290 in respect of that head of damage.

Claim for 792 steers and bullocks mustered too late

The defendant's claim is set out at par 12(6) of its counterclaim which I have earlier set out at par 32 above.
Expert evidence was lead on behalf of the defendant from Mr Andrew Edwards. He is employed as the marketing manager with Ray White Livestock in Broome and has been in that position for the last three years. Prior to that, he was employed by Elders. For the last 28 years he has been involved in the livestock industry.
He explained that traditionally the wet season in the Kimberley runs from November/December through until February/March. Immediately after the wet season ends is when the feed available to cattle is at its highest quality. Thereafter the feed quickly dries off. Correspondingly, the cattle are at their heaviest weight immediately after the wet season ends and before the feed starts to dry off. Thereafter the cattle start to lose weight. The ideal time therefore to sell sale cattle is in April.
Rainfall figures for the period November 2004 to June 2005 for Moola Bulla supplied by the Office of the Bureau of Meteorology were provided to Mr Edwards. Mr Edwards was provided with details of the basis upon which the defendant's counterclaim was particularised and with details of 792 steers and bullocks which were sold on 4 June 2005, including their weight and the amount for which they were sold. Mr Edwards estimated that the cattle which were sold in June 2005 which had an average weight of 250.8 kilograms would, conservatively estimated, have had an average unit weight of 276 kilograms on 7 April 2005.
He considered, based upon sales summary figures provided to him for March and April 2005 that a reasonable price per kilogram as at 7 April 2005 was $1.88. He undertook the calculation as pleaded at par 12(6) of the re‑amended counterclaim and concluded the sum of $99,978 represented the difference in what the defendant could have expected to have received had 792 cattle been sold as at 7 April 2005 rather than when they were in fact sold on 4 June 2005.
His report dated 15 May 2008 was tendered into evidence and became Exhibit 58.
The plaintiff called an expert, Mr Stephen Grose. He works in the live cattle export industry. He had been provided with a copy of Mr Edwards' report and provided his own report dated 26 May 2008 which was tendered into evidence and became Exhibit 59. Although that report questioned and was critical of Mr Edwards' conclusions, at the end of the day there was no significant difference between his opinion and the opinion of Mr Edwards. He agreed that as at 7 April 2005, a reasonable price for cattle sold at that time was $1.80 if the cattle were sold at the station. If they were sold at a port, a transporter cost would have been incurred of 5‑6 cents per head of cattle. Therefore the total cost would have been $1.85‑$1.86 which is similar to the price adopted by Mr Edwards of $1.88.
Mr Grose also agreed that the demand for cattle is usually highest immediately after the end of the wet when you are likely to get a higher price. He also agreed that cattle lose weight the longer the mustering season continues. However, he would not have had expected them to have lost that much weight so that by 4 June 2005 they were 250 kilograms.
Mr Botha explained the basis of the defendant’s claim by reference to the running sale summary for 2005 (Exhibit 50). That summary records the various classes of cattle which were sold during 2005. In particular, insofar as the defendant's counterclaim is concerned, it records the number of steers and bullocks which were sold. 10,831 cattle were sold, which comprised 4,529 steers and bullocks. The summary records that as at 3 April 2005, 1,806 steers and bullocks were sold. From the muster summary for Sisters it is recorded 3,882 steers were mustered. Mr Botha confirmed that most of the steers were mustered from Sisters. He said that 2,038 of those steers were mustered too late and they were put back into Sisters. He also said that normally they muster approximately 100 steers out of each paddock and he estimated that by 7 April 2005 the plaintiff should have mustered six to eight paddocks. Mr Botha also accepted he did not permit the plaintiff to perform any mustering work after they finished at Gnewings and until they mustered Top Sisters. He said he did that because he did not think the plaintiff was able to properly undertake the muster because of lack of staff and equipment.
The last two heads of damage I have considered were based upon the breach of contract by the plaintiff abandoning the contract. This head of damage is based upon a breach of the express and implied terms of the contract. Although I have found the plaintiff was in breach of express terms of the contract by failing to have sufficient equipment and failing to have a crew of eight stock hands, and was also in breach of the implied term by failing to proceed with the muster with due diligence, I am not satisfied those breaches have caused the defendant to suffer any loss or damage. I am not satisfied the plaintiff would have mustered at least a further 792 steers and bullocks by 7 April 2005 had it proceeded with the muster with due diligence and had it had sufficient equipment and staff. As at 7 April 2005 the defendant had only sold 1,806 steers from the 3,882 which had then been mustered. 2,308 were returned to Sisters. I am therefore not persuaded that even had the plaintiff mustered more steers by 7 April 2005 that it necessarily followed those steers would have been sold. Mr Botha points to the 792 steers which were sold on 4 June 2005 as recorded in the running sale summary. He says those steers should have been mustered by 7 April 2005 when they would have been sold. I am not persuaded that is the case.
By 7 April 2005 the only cattle mustered by the plaintiff were the cattle jointly mustered from Sisters and Gnewings. The decision to jointly muster Sisters and Gnewings caused a delay in the plaintiff proceeding with its own muster. Thereafter from 3 April 2005 until 15 April 2005 the plaintiff was prevented by the defendant from proceeding with the muster. Once the plaintiff was permitted to proceed with the muster it mustered 1,176 cattle from Top Sisters. By that time the plaintiff had gained an extra stock hand, Mr Demi. Mr Botha says the defendant also loaned some equipment to the plaintiff to enable it to undertake the muster.
In those circumstances I find that although there was a delay in mustering cattle, that delay was caused by the decision to jointly muster Sisters and Gnewings and Mr Botha withdrawing permission for the plaintiff to proceed with the muster. The decision to proceed with the joint muster was as much for the benefit of the defendant as it was for the plaintiff. The defendant did not have sufficient numbers to undertake the muster by itself. Had the plaintiff not undertaken the joint muster and not had permission withdrawn to proceed with the muster it is probable, even though the plaintiff was under‑equipped and under-staffed, it would have mustered a number of steers and bullocks by 7 April 2005.
In summary I am not satisfied that even had the plaintiff performed mustering by 7 April 2005 that the defendant would necessarily have sold a greater number of steers and bullocks than it in fact sold. Neither am I persuaded that if in fact the defendant would have sold a greater number of steers by 7 April 2005 that the failure to do so was caused by the plaintiff’s breach of contract. Rather it was caused by the decision to undertake the joint muster and Mr Botha's decision to withdraw permission for the plaintiff to proceed with the muster. Even though I have found the plaintiff was under resourced and under staffed, in my view, given the experienced stock hands employed by the plaintiff the plaintiff would, had it not been for the joint muster and the withdrawal of permission to proceed, have mustered steers and bullocks which would have been available for sale as at 7 April 2005. I am unable to determine what number of steers and bullocks the plaintiff would have mustered and therefore whether the number was less than 792.
I therefore find the defendant is entitled to be awarded the sum of:
Toyota$ 2,750.00 (GST incl)
Horses$18,022.00
Stores$ 6,861.50
Paddock carting $16,112.25 (GST incl)
Replacement mustering contractor $ 8,290.00 (GST incl)
Loss and damage suffered by it as a
result of the defendant's breach of
contract$52,035.75

Trade Practices Act 1974 & Fair Trading Act 1987

Although the claim for damages under the Trade Practices Act 1974 or the Fair Trading Act 1987 was the subject of any detailed submissions, I do not understand the defendant to suggest such a claim would result in a different award of damages than I have already found. It is therefore unnecessary, given my earlier findings, to consider such a claim.

Conclusion

Having found the plaintiff is entitled to the sum of $27,580.55 pursuant to the contract and the defendant to the sum of $52,035.75 by reason of the plaintiff's breach of contract, it follows the sum to which the plaintiff is entitled pursuant to the contract should be set off against the damages awarded to the defendant for breach of contract leaving an amount to be awarded to the defendant in the sum of $24,455.20.
Accordingly, I award the defendant the sum of $24,455.20.